UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4903
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDUARDO RICO PACHECO, a/k/a Juan Silverio Cruz,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00071-RLV-DCK-1)
Submitted: May 30, 2013 Decided: June 4, 2013
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
D. Baker McIntyre, III, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eduardo Rico Pacheco pleaded guilty pursuant to a
written plea agreement to illegally reentering the United States
after having been removed based upon a felony conviction, in
violation of 8 U.S.C. § 1326(a), (b)(1) (2006). The district
court calculated Pacheco’s Guidelines range under the U.S.
Sentencing Guidelines Manual (2011) at ten to sixteen months’
imprisonment. The court stated that an upward departure was
warranted in light of Pacheco’s repeated illegal reentries and
risk of recidivism. Neither this ground nor any other ground
for departure was mentioned in the presentence investigation
report or prior to the sentencing hearing. After announcing its
decision to depart, the court sentenced Pacheco to thirty
months’ imprisonment.
On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal, but questioning the
district court’s compliance with Federal Rule of Criminal
Procedure 11 and the reasonableness of the sentence. Pacheco
was advised of his right to file a pro se supplemental brief,
but has not done so. The Government declined to file a brief.
We affirm Pacheco’s conviction, vacate his sentence, and remand
for resentencing.
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Because Pacheco did not move in the district court to
withdraw his guilty plea, we review the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). To prevail under this standard, Pacheco must
establish that an error occurred, was plain, and affected his
substantial rights. United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). Our review of the record establishes
that the district court substantially complied with Rule 11’s
requirements, ensuring that Pacheco’s plea was knowing and
voluntary. We therefore affirm Pacheco’s conviction.
We review Pacheco’s sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.;
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After
determining whether the district court correctly calculated the
advisory Guidelines range, we must decide whether the court
considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the
arguments presented by the parties, and sufficiently explained
the selected sentence. Lynn, 592 F.3d at 575-76; United States
v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Once we have
determined that the sentence is free of procedural error, we
consider the substantive reasonableness of the sentence,
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“tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.
We conclude that the district court committed
procedural error in failing to provide notice to the parties
that it was contemplating an upward departure. Federal Rule of
Criminal Procedure 32(h) requires the district court to provide
“reasonable notice” of an intent to depart on a ground not
previously identified by the presentence investigation report or
one of the parties and to specify the ground of departure. Fed.
R. Crim. P. 32(h). Because Pacheco failed to object to the
district court’s failure to provide notice, we review the upward
departure for plain error. See United States v. Olano, 507 U.S.
725, 732 (1993). Pacheco must therefore establish that an error
occurred, was plain, and affected his substantial rights.
Massenburg, 564 F.3d at 342-43.
We conclude that an error occurred because the court
denied the parties an opportunity to comment by failing to
inform them that it was contemplating an upward departure. The
error was also plain because the decision to depart upward
without providing notice to the parties violated the clear
direction of Rule 32(h). Finally, because the error resulted in
an increased sentence, nearly double the upper limit of the
Guidelines range, Pacheco’s substantial rights were affected.
United States v. Spring, 305 F.3d 276, 282-83 (4th Cir. 2002).
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Accordingly, we vacate Pacheco’s sentence and remand for further
proceedings. ∗
In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious issues.
We therefore affirm Pacheco’s conviction, vacate his sentence,
and remand for resentencing to allow the district court to
provide the required notice of its intent to consider an upward
departure. This court requires that counsel inform Pacheco, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Pacheco requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Pacheco. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
∗
By this disposition we express no opinion as to the
appropriateness of a departure or variance on remand if the
required procedures are observed.
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